December 2014

In a unanimous opinion authored by Justice Clarence Thomas, the United States Supreme Court held that warehouse workers filling amazon.com orders, do not have to be paid for time spent waiting for and passing through a rigorous security screening prior to exiting the workplace. In Integrity Staffing Solutions, Inc. v. Busk, the Court decided that the employees’ time was not compensable under the Fair Labor Standards Act of 1938 (“FLSA”). Justice Sonia Sotomayor wrote a concurring opinion, which Justice Elena Kagan joined, to expound on her understanding of the standards applied by the Court. The result is not entirely surprising given that the Obama administration filed an amicusbrief supporting Integrity Staffing arguing that the time was not compensable. The Supreme Court also ruled in favor of employers in two recently decided FLSA cases in June 2012 and January 2014. See Sandifer v. U.S. Steel, 134 S.Ct. 870 (2014); Christopher v. SmithKline Beecham, 132 S.Ct. 2156 (2012). The Integrity Staffing decision, which employers are hailing as a “clear victory,” comes at the expense of the workers who had to wait roughly 25 minutes each day to pass through security checkpoints after the end of their shifts.

Jesse Busk and Laurie Castro brought the case as a collective action on behalf of themselves and similarly situated employees. Busk and Castro were employed by Integrity Staffing at amazon.com “fulfillment centers” where items purchased through Amazon’s website were packaged and shipped. In an effort to prevent and deter theft, the warehouse workers were required to undergo a thorough screening in which they were compelled to remove items such as wallets, keys, and belts and pass through metal detectors. The employees alleged that the time spent passing through security could have been drastically reduced through either a staggering of shifts or adding more security screeners. Given that this time was spent to prevent employee theft, Busk and Castro argued that the screenings were conducted solely for the benefit of the employers and their customers.

The district court held that the time was not compensable under the FLSA because it was not integral to the performance of the employees’ principal duties and dismissed the complaint. The U.S. Court of Appeals for the Ninth Circuit reversed, finding the post-shift activities sufficiently indispensable because they were necessary to the principal work performed and for the benefit of the employer. Since the screenings were conducted at the insistence of the employer to prevent employee theft, the Ninth Circuit held that they were integral and done for Integrity Staffing’s benefit.

A federal district judge in the Western District of Pennsylvania has ruled that President Obama’s executive order on immigration is unconstitutional.

For those of us who know the track record of the judge – President George W. Bush appointee Arthur Schwab – the ruling comes as no surprise.

Paul Gordon of People for the American Way has already explained how Judge Schwab’s opinion betrays his ideological opposition to the president’s executive order. For example, Judge Schwab reached to declare the new policy unconstitutional without first deciding whether the policy even applies to the defendant in this case. He also harps on statements that President Obama made about immigration reform in 2011—statements that, Gordon points out, “make great fodder for Fox News, [but] don’t address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.”

But while Judge Schwab’s opinion is troubling, it isn’t the first time his political views have trumped his duty to be an impartial judge.

In 2005, famed forensic pathologist Dr. Cyril Wecht had a public feud with Allegheny County District Attorney Stephen Zappala over Zappala’s failure to investigate or prosecute white police officers who had allegedly killed black citizens. Soon after, Wecht was indicted on public corruption charges that many believed to be politically motivated.

Judge Schwab was assigned to the case, and made a number of unorthodox rulings against Wecht. In one instance, he prohibited Wecht from making nearly any objection to the government’s 240,000 pages of evidence — including an objection arguing that some of the evidence was illegally seized. In another ruling, Schwab kept the names of the jurors under seal.

The first trial resulted in a hung jury. On appeal, the Third Circuit called Schwab’s rulings “inappropriate,” “troublesome,” and “strange and unsettling,” and took the unusual step of removing him from the case. Prosecutors decided not to retry the case.

More recently, Judge Schwab wrote an opinion that criticized the National Labor Relations Board for serving as the “litigation arm of the [Service Employees International Union].”

Given Schwab’s history of playing political favorites, it is no surprise that, when the Allegheny County Bar Association conducts its annual judicial survey, Judge Schwab consistently ranks dead last among state and federal judges in both temperament and impartiality.

Faced with Judge Schwab’s latest ruling, the Third Circuit should once again reverse, ensuring that President Obama’s executive order continues to protect millions of American children and families.

The Senate is getting ready to leave on a three-week vacation. But dozens of nominees to judicial and executive branch posts are still waiting to start the jobs for which they’ve been nominated.

It’s not right for senators to leave Washington for the year before their job is done.

With your help, we’ve been keeping the pressure on the Senate to do its job and confirm nominees. Since the November election, the Senate has confirmed 15 judges. But there still are at least a dozen more who can and should be confirmed this year. And many executive branch nominees have been waiting months and even years for yes-or-no votes.

As AFJ President Nan Aron said: “When judgeships sit vacant, all Americans suffer. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice.”

Please take a moment to call the Capitol switchboard at 202-224-3121. Ask for your senators’ offices and tell them why it is so important to confirm these nominees.

Alliance for Justice President Nan Aron was among the speakers today at the launch of 90 Million Strong, a new campaign to abolish the death penalty. She spoke at a news conference at the National Press Club. These are her prepared remarks:

Nan Aron

My name is Nan Aron. I am President of Alliance for Justice. On behalf of the more than 100 groups that make up the Alliance, I would like to thank the National Coalition to Abolish the Death Penalty for organizing this campaign and this event and for inviting us to participate.

AFJ works to promote a fair and independent judiciary. There can be no clearer reminder of the importance of who sits on our courts than that these jurists are called upon to make life and death decisions. For decades the Supreme Court has tried to reconcile state-sanctioned killing with the Constitution of the United States. That cannot be done.

Justice William Brennan wrote that

“moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.

Justice Thurgood Marshall, who believed most Americans were uninformed about the death penalty, wrote that

Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.

But today, instead of a Brennan or a Marshall, the life of an accused might be in the hands of a judge like Edith Jones of the Fifth Circuit Court of Appeals.

Judge Jones has said that capital defendants’ claims of racism, arbitrariness and even claims of innocence are nothing more than – her words – red herrings.

She also has declared that,

a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face imminent judgment.

I don’t know how one makes peace with upholding the execution of someone who may be innocent. And I don’t know how one makes peace with using the mechanism of the state to punish people by taking their lives.

Justice Harry Blackmun struggled with the death penalty. At first, he thought there might be some way to reconcile it with the Constitution. But in 1994, he wrote:

“I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. …”

Declared Blackmun: “From this day forward, I no longer shall tinker with the machinery of death.”

Alliance for Justice agrees: It is time to stop tinkering with the machinery of death.

We look forward to the day when we have a Supreme Court that will rule, once and for all, that the death penalty is unconstitutional.

We look forward to being a part of the 90 Million Strong campaign, and mobilizing our more than 100 members to act on this vital issue.